Tuesday, August 7, 2012

In Lubanga, ICC sets out reparations principles

Today Trial Chamber I of the International Criminal Court issued principles on reparations, in the context of the Lubanga case.
On March 14, a former militia leader in the Democratic Republic of Congo, Thomas Lubanga Dyilo, was found guilty of the war crimes of enlisting and conscripting children under the age of 15 years and using them to participate actively in hostilities. On July 10, he was sentenced to 14 years in prison. (IntLawGrrls' prior Lubanga posts are here; Susan SáCouto's additional post here.)
Today's order was issued by the same judges who rendered the verdict and imposed the sentence – Judge Adrian Fulford of the United Kingdom, Judge Elizabeth Odio Benito of Costa Rica, and Judge René Blattmann of Bolivia.
In today's 94-page order, this Trial Chamber of the Court drew heavily on existing soft law on reparations (including the U.N. Basic Principles approved in 2005) as well as on the jurisprudence of the regional human rights courts, especially the Inter-American Court. It detailed what is involved in restitution, compensation and rehabilitation.
Throughout, the Court tries to strike a balance between being inclusive and non-discriminatory and recognizing the specific needs of certain sub-groups of victims. While it doesn’t limit the reparations award to those who have applied or those who appeared before the Court, it does try to tailor rehabilitation, for example, to the specific needs of victims of child recruitment.

Sexual violence
Even though the charges against Lubanga did not include charges of crimes of sexual violence (something much criticized by women’s groups at the time) the reparations judgment makes a point of including a discussion of these crimes. It calls for reparations to combat stigmatization and exclusion, and recognizes that victims may feel shame. The Court adds:

'207. The Court should formulate and implement reparations awards that are appropriate for the victims of sexual and gender-based violence. The Court must reflect the fact that the consequences of these crimes are complicated and they operate on a number of levels; their impact can extend over a long period of time; they affect women and girls, men and boys, together with their families and communities; and they require a specialist, integrated and multidisciplinary approach.
'208. The Court shall implement gender-sensitive measures to meet the obstacles faced by women and girls when seeking to access justice in this context, and accordingly it is necessary that the Court takes steps to ensure they are able to participate, in a full sense, in the reparations programmes.'

Trust Fund for Victims
Because none of Lubanga’s assets were ever found, the reparations will have to come from the Trust Fund for Victims (TFV). The Fund’s total budget is only a few million dollars, and many European governments have cut back on their donations given the financial crisis. Moreover, in addition to providing and administering reparations in cases before the Court, the TFV has also been funding broader programs of assistance to hard-hit communities in the DRC. The Court therefore opted to deemphasize individual compensation, and focus on collective reparations. The Court had this to say:

'220. Individual and collective reparations are not mutually exclusive, and they may be awarded concurrently. Furthermore, individual reparations should be awarded in a way that avoids creating tensions and divisions within the relevant communities.
'221. When collective reparations are awarded, these should address the harm the victims suffered on an individual and collective basis. The Court should consider providing medical services (including psychiatric and psychological care) along with assistance as regards general rehabilitation, housing, education and training.
'... The Chamber endorses this suggestion of the TFV that a community-based approach, using the TFV's voluntary contributions, would be more beneficial and have greater utility than individual awards, given the limited funds available and the fact that this approach does not require costly and resource intensive verification procedures.'

5-point plan
Given these priorities, the Court declines to adjudicate on the individual reparations forms submitted to date, ordering that they be turned over to the TFV. It lays out a 5-point plan, including constitution of a multidisciplinary group of experts to work with the TFV under Court supervision.

The plan entails consultation with communities, starting with those named in the judgment but not limited to them; assessment of harms; public debates in the communities; collection of proposals for reparative projects, and implementation. Thus the idea is that the communities, not the TFV, should choose what reparation looks like. This seems like the right approach, although it does presume a minimum amount of security and cohesiveness among victim communities, which may be optimistic.
The Court will continue to supervise the reparations process, but a new Trial Chamber, not the one that heard the criminal case, will be in charge. I suppose this is to avoid criminal law standards of proof from sneaking inadvertently into the reparations proceedings (and the terms of the judges on the panel that heard the criminal case are at an end), but it does seem to create a steep learning curve for a new panel of judges.
Finally, the Court recognizes the need for non-material or symbolic reparations, and stresses that the judgment itself is a form of reparation, as is publicity surrounding it. It suggests a series of other possible symbolic measures, but refuses to order Lubanga to apologize to his victims. It does suggest that if he voluntarily agrees to do so, that would be constructive.